Immigration, Asylum and Nationality Bill - Standing Committee E

[Sir Nicholas Winterton in the Chair]

Immigration, Asylum and Nationality Bill

Nicholas Winterton: The Committee made excellent progress this morning. When we adjourned the Minister had just started to speak to new clause 1.

New Clause 1 - Asylum and human rights claims: definition

‘(1)Section 113(1) of the Nationality, Immigration and Asylum Act 2002 (appeals: interpretation) shall be amended as follows.
(2)For the definition of “asylum claim” substitute—
““asylum claim”—
(a)means a claim made by a person that to remove him from or require him to leave the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention, but
(b)does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this Part in accordance with immigration rules,”.
(3)For the definition of “human rights claim” substitute—
““human rights claim”—
(c)means a claim made by a person that to remove him from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights, but
(d)does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this Part in accordance with immigration rules,”.”.—[Mr. McNulty.]

Brought up, and read the First time.

Second Reading moved [this day.]

Tony McNulty: I hope that you managed to have lunch today, Sir Nicholas.

Nicholas Winterton: No, I did not.

Tony McNulty: I am sorry. Let us therefore dispatch this afternoon’s proceedings with the same alacrity as this morning’s.
In essence, new clause 1 is one of the less contentious or complex matters before us. It does two things. Section 113 of the Nationality, Immigration and Asylum Act 2002 states that an asylum claim and a human rights claim are claims made by a person to the Secretary of State at a place designated by the Secretary of State. In other words, all applications have to be made in person. We prefer to have the flexibility as expressed in new clause 1 that claims under this heading be made, but not necessarily and statutorily, in person. Not everyone can claim in person. We need the flexibility to accommodate the  seriously ill, for instance. Furthermore, it is not usually necessary for a person’s identity to be examined more than once. That can be done in the first instance.
Swapping the primary legislation for immigration rules under clause 42 will give us the flexibility to provide that not all asylum or human rights claims need to be made in person. Immigration rules will also allow us to make explicit provision for special arrangements in exceptional cases such as serious illness, which we are not allowed to do under the existing statute.
New clause 1 also clarifies that further submissions made by a claimant after his asylum or human rights claim has already been decided will not amount to another asylum claim or human rights claim for appeal purposes, if it has been decided in accordance with the immigration rules that the further submissions do not amount to a fresh claim. They may amount to that, but it should not follow that in every instance that they do. The relevant provision of the immigration rules is paragraph 353.
To be regarded as a fresh claim, further submissions must be significantly different from the original claim. This means that the content of the submissions must not already have been considered and must, when taken together with the material considered previously, create a reasonable prospect of success. It is important that the legislation is clear that a claimant whose further submissions are determined not to amount to a fresh claim will not have another right of appeal. Underpinning the rule in primary legislation will create greater certainty in its application. Without trying to provoke cynicism and suspicion, we believe that this is a helpful new clause which tidies things up. We will come on to debate matters of more substance.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 2 - Failure to provide documents

‘After section 88(2)(b) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal: ineligibility) insert—
“(ba)has failed to supply a medical report or a medical certificate in accordance with a requirement of immigration rules,”.’.—[Mr. McNulty.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 3 - Arrest pending deportation

‘At the end of paragraph 2(4) of Schedule 3 to the Immigration Act 1971 (c.77) (deportation: power to detain) insert “; and for that purpose the reference in paragraph 17(1) to a person liable to detention includes a reference to a person who would be liable to detention upon receipt of a notice which is ready to be given to him.”.”.—[Mr. McNulty.]

Brought up, and read the First time.

Tony McNulty: I beg to move, That the clause be read a Second time.
I congratulate the Clerk on remembering new clause 2, which has sort of been the legislative equivalent of a hanging chad; it was floating around somewhere in our deliberations. I momentarily forgot about it, so my apologies for that.
This matter should be straightforward. The clause confirms that the power of arrest in deportation cases is available when notice of intention to deport is ready but has not yet been given to a prospective deportee. The clause will ensure that immigration officers and constables can continue to seek a warrant to enter named premises in order to search for and arrest a prospective deportee and serve him with a notice of decision to deport.
I assure the Committee that all previous warrant applications were lawful; they were properly made and lawfully granted. The new clause effectively puts into statute the current practice, which is entirely lawful. I commend the clause to the Committee.

Evan Harris: I am grateful to the Minister for his explanation, and to the Home Office team who took me through the issue. I understand the Minister’s point, which is that the new clause puts beyond doubt the fact that a judge can issue such a warrant in the kind of case mentioned. However, the Immigration Law Practitioners Association has put a number of points to me relating to how the clause may go wider than the point that the Minister seeks to deal with. I would be grateful if he would clarify the matter.
First, do the new powers apply, as they appear to do, only to cases in which a warrant is obtained, or are they sufficiently broad to allow immigration officers or constables to arrest a person without a warrant for the purpose of serving a notice under schedule 2(17)(1) of the Immigration Act 1971? Or are we just moving the doubt about whether such officers can do that to this new area? Secondly, are the powers strictly related to cases in which there is a question as to whether an act of terrorism or a related act applies? Or do the powers apply—as they appear to do—when there is some other reason why people would need to be arrested, detained and removed, such as in cases involving selling drugs, for example?
There is a question about the extent to which immigration officers are bound by the same rules as the police. I suspect that the subject has been debated before, but I shall briefly set out my concern, and perhaps the Minister can deal with it. Part 7 of the Immigration and Asylum Act 1999, which was modelled to a large extent on the Police and Criminal Evidence Act 1984, amended the Immigration Act 1971 to give immigration officers powers of arrest and search that were previously the sole province of the police. Subsequent legislation has extended these powers.
Section 145 of the 1999 Act provides for immigration officers to have regard to codes of practice when exercising these powers. The codes are the Immigration (PACE Codes of Practice) Direction 2000, and the Immigration (PACE Codes of Practice No. 2 and Amendment) Direction of 19 November 2000. They apply parts of the PACE codes to  immigration officers. However, some safeguards that apply to police officers do not apply to immigration officers, such as the requirement to give one’s name when conducting certain searches. Can the Minister clarify whether that is the intention of the codes? If so, what is the justification for having any difference? One might argue that, if anything, the requirements in the guidelines ought to be the stricter ones. In passing, I have been told that it is hard to find those codes of practice. Perhaps the Minister will take note of that and ensure that they are easier to find.
I had intended to raise my last point in any case, but it has been reinforced by what ILPA has said. It relates to complaints about poor practice by immigration officers; indeed, it also applies to the detention estate, but I shall restrict my remarks to the situation before us. In cases where there is a question of the police being out of line with acceptable practice in executing warrants or making arrests, we have the Independent Police Complaints Commission and relatively independent procedures. However, it is not clear what the equivalent independent complaints mechanism is for immigration officers.
People can go through the complaints procedure at the immigration and nationality directorate, and I have instigated several complaints about escorts for detainees. I have not yet heard the outcome, however, even though it has been months, or even years, since I made those complaints, so it is not clear to me that the procedure is readily accessible. That aside, the procedure is not independent. Given that immigration officers are increasingly used to dealing with matters previously dealt with by the police, I would be grateful if the Minister could clarify whether there is any independent means of complaint to ensure that immigration officers properly exercise their powers and that, for example, they use reasonable force. I would be grateful if he could give me some clarification on those questions.

Tony McNulty: As I understand it, the new clause relates to arrest and detention pending deportation and is not specific to terrorism; it is simply broadening things out. Given that it refers only to arrest and detention pending deportation and not to arrest for criminal offences, PACE does not apply. That has always been the case.
This is not germane to the Bill, but we are looking to include independent complaints monitoring of immigration enforcement powers by the Independent Police Complaints Commission in the safer communities Bill or some other legislative vehicle, although it is not for me to say where. I think that we looked at it in the context of this Bill, but that it was beyond the Bill’s scope, although if that is wrong, I shall certainly correct what I have said. None the less, I take the point about there being some overarching independent monitoring body.

Evan Harris: I welcome that statement because I believe that Anne Owers, Her Majesty’s chief inspector of prisons, shares that concern, although I would not want to quote her directly. We had a meeting with her and a refugee group at which this very  question was raised, and I am extremely grateful that specific proposals could be included in a Bill. If they could be included in this Bill, that would be beneficial, although I accept that it is a question of whether they would be in order, given the long title. However, I encourage the Minister to go down that path quickly because there have been a number of complaints, and it would be helpful to clarify whether they are justified through an independent body.

Tony McNulty: I do not have the information to hand, but I would not over-egg the point about complaints. They are dealt with in an appropriate fashion; in many cases, that is done by inquiry, and the inquiry is followed up, particularly in the case of detention facilities. The hon. Gentleman will know that we seek in clause 39 to fill some of the gaps as regards short-term holding facilities and escort duties, which he mentioned. It is right and proper that we do that. I will be discussing a range of issues at a meeting with Anne Owers, Her Majesty’s chief inspector of prisons, and the respective children’s commissioners for England, Scotland and Wales, which will be useful, not least as regards the issues on which we are deliberating. I am certainly alive to those issues.
On the hon. Gentleman’s last point, a person can be arrested without warrant pending deportation. The warrant is more about the ability to gain entry to and search premises to effect the arrest. As I understand it, the warrant is not required in the first instance to arrest someone pending deportation.
The hon. Gentleman’s questions are all entirely fair, and I hope that I have dealt with them. With that in mind, I commend the new clause—again, I think—to the Committee.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 4 - Deprivation of citizenship

‘(1)For section 40(2) of the British Nationality Act 1981 (c. 61) (deprivation of citizenship: prejudicing UK interests) substitute—
“(2)The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.”
(2)At the end of section 40A(3) of that Act (deprivation: appeal) add—
“, and
(e)section 108 (forged document: proceedings in private).”;
(and omit the word “and” before section 40A(3)(d)).’. —[Mr. McNulty.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 5 - Deprivation of right of abode

(1)After section 2 of the Immigration Act 1971 (right of abode) insert—
“2ADeprivation of right of abode
(1)The Secretary of State may by order remove from a specified person a right of abode in the United Kingdom which he has under section 2(1)(b).
(2)The Secretary of State may make an order under subsection (1) in respect of a person only if the Secretary of State thinks that it would be conducive to the public good for the person to be excluded or removed from the United Kingdom.
(3)An order under subsection (1) may be revoked by order of the Secretary of State.
(4)While an order under subsection (1) has effect in relation to a person—
(a)section 2(2) shall not apply to him, and
(b)any certificate of entitlement granted to him shall have no effect.”
(2)In section 82(2) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (right of appeal: definition of immigration decision) after paragraph (ia) insert—
“(ib)a decision to make an order under section 2A of that Act (deprivation of right of abode),”.’.—[Mr. McNulty.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 6 - Acquisition of British nationality &c.

(1)The Secretary of State shall not grant an application for registration as a citizen of any description or as a British subject under a provision listed in subsection (2) unless satisfied that the person is of good character.
(2)Those provisions are—
(a)sections 1(3) and (4), 3(1), (2) and (5), 4(2) and (5), 4A, 4B, 4C, 5, 10(1) and (2), 13(1) and (3) of the British Nationality Act 1981 (c. 61) (registration as British citizen),
(b)sections 15(3) and (4), 17(1), (2) and (5), 22(1) and (2), 24, 27(1) and 32 of that Act (registration as British overseas territories citizen, &c.),
(c)section 1 of the Hong Kong (War Wives and Widows) Act 1996 (c. 41) (registration as British citizen),
(d)section 1 of the British Nationality (Hong Kong) Act 1997 (c. 20) (registration as British citizen), and
(e)article 6(3) of the Hong Kong (British Nationality) Order 1986 (S.I. 1986/948) (registration as British Overseas citizen).
(3)Where the Secretary of State makes arrangements under section 43 of the British Nationality Act 1981 for a function to be exercised by some other person, subsection (1) above shall have effect in relation to that function as if the reference to the Secretary of State were a reference to that other person.”. —[Mr. McNulty.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 7 - Refugee Convention: construction

(1)In the construction and application of Article 1(F)(c) of the Refugee Convention the reference to acts contrary to the purposes and principles of the United Nations shall be taken as including, in particular—
(a)acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence), and
(b)acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence).
(2)Where the Secretary of State rejects an asylum claim wholly or partly on the grounds that Article 1(F) of the Refugee Convention applies, or makes any other decision wholly or partly in reliance on the application of that Article, the Asylum and Immigration Tribunal or the Special Immigration Appeals Commission—
(a)must begin its consideration of the Refugee Convention on any appeal in which the rejection or decision is to be considered by considering whether or not Article 1(F) applies, and
(b)if it concludes that Article 1(F) applies, must dismiss the appeal in so far as it relies on the Refugee Convention.
(3)In this section—
“asylum claim” means a claim by a person that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom’s obligations under the Refugee Convention,
“the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, and
“terrorism” has the meaning given by section 1 of the Terrorism Act 2000 (c. 11).
(4)Section 72(10)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal: Tribunal or Commission to begin by considering certificate) shall have effect subject to subsection (2)(a) above.’.—[Mr. McNulty.]

Brought up, and read the First time.

Tony McNulty: I beg to move, That the clause be read a Second time.

Nicholas Winterton: With this we may discuss the following: amendment (a), in line 4, leave out paragraphs (a) and (b) and insert
‘offences set out in section 1(1), 2, 5, 6, 8, 9, 10 or 11 of the Terrorism Act 2006.’.
Government new clause 8—Appeals: deportation—
(1) After section 97 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeals: national security) insert—
“97ANational security: deportation (1)This section applies where the Secretary of State certifies that the decision to make a deportation order in respect of a person was taken on the grounds that his removal from the United Kingdom would be in the interests of national security. (2)Where this section applies— (a)section 79 shall not apply, (b)the Secretary of State shall be taken to have certified the decision to make the deportation order under section 97, and
(1)This section applies where the Secretary of State certifies that the decision to make a deportation order in respect of a person was taken on the grounds that his removal from the United Kingdom would be in the interests of national security.
(2)Where this section applies—
(a)section 79 shall not apply,
(c)for the purposes of section 2(5) of the Special Immigration Appeals Commission Act 1997 (c. 68) (appeals from within United Kingdom) it shall be assumed that section 92 of this Act—
(i)would not apply to an appeal against the decision to make the deportation order by virtue of section 92(2) to (3D),
(ii)would not apply to an appeal against that decision by virtue of section 92(4)(a) in respect of an asylum claim, and
(iii)would be capable of applying to an appeal against that decision by virtue of section 92(4)(a) in respect of a human rights claim unless the Secretary of State certifies that the removal of the person from the United Kingdom would not breach the United Kingdom’s obligations under the Human Rights Convention.
(3)A person in respect of whom a certificate is issued under subsection (2)(c)(iii) may appeal to the Special Immigration Appeals Commission against the issue of the certificate; and for that purpose the Special Immigration Appeals Commission Act 1997 shall apply as to an appeal against an immigration decision to which section 92 of this Act applies.
(4)The Secretary of State may repeal this section by order.”.’.
(2)In section 112 of that Act (regulations, &c.) after subsection (5A) insert—
“(5B)An order under section 97A(4)—
(a)must be made by statutory instrument,
(b)shall be subject to annulment in pursuance of a resolution of either House of Parliament, and
(c)may include transitional provision.”.’.
And the following amendment thereto: (a), in line 33, leave out subsection (4).

Tony McNulty: With your indulgence, Sir Nicholas, and without remotely challenging the order of our business, it might be expeditious if I deal with new clause 7 and the amendment and new clause 8 separately. If you would like to take a break in between, Sir Nicholas, I am more than up for that. I am here to oblige.

Nicholas Winterton: I am grateful.

Tony McNulty: Article 1(F)(c) of the refugee convention provides for the exclusion of an individual from the protection of the refugee convention in cases in which there are “serious reasons for considering” that the person has been guilty of acts contrary to the purposes and principles of the United Nations. Those purposes and principles are set out in the preamble and articles 1 and 2 of the charter of the United Nations. They enumerate fundamental principles that should govern the conduct of members in relation to each other and to the international community. It is implicit in article 1(F)(c) that terrorists should be excluded from asylum decisions that have been upheld by both a tribunal and the Special Immigration Appeals Commission. However, we consider that in the light of the heightened threat of terrorism, particularly following the London bombings, but not exclusively for that reason, it is appropriate to legislate to make it explicit that such individuals should not be afforded the protection of the convention.
We have also made it clear that we do not believe that there are any circumstances in which terrorism is justified, wherever the terrorist act is committed; we cannot condemn terrorist acts in the United Kingdom but tolerate them elsewhere. The amendment is entirely consistent with the refugee convention. It is also in line with UN Security Council resolutions. For example, resolution 1373 states:
“Any act of international terrorism constitutes a threat to international peace and security ... acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations”.
We need new clause 7. It is compatible with article 1(F)(c) of the refugee convention. With that in mind, and by way of introduction, I commend the new clause to the Committee.

Neil Gerrard: The introduction of the interpretation of article 1(F) implies that the Minister believes that its current use is causing problems. It would help the Committee if he indicated what sort of cases there are or how many cases there have been in which the absence of new clause 7 from the current law has caused a problem? Its absence has presumably led to someone being given asylum whom the Minister feels should not have been granted it.

Tony McNulty: It is an entirely fair point. I say quite candidly that that question is difficult to answer, simply because we do not know the answer. I must stress that the new clause has not only been introduced as a result of 7 July, although those events obviously brought things into stark focus. We start from the premise that there will potentially be instances of people being granted asylum who perhaps should not have been granted it, but we are talking about a small number. It is not a blanket measure, but the legislation does require tightening up.
As I have also said, I appreciate the “good terrorist”, “bad terrorist” and “terrorist versus freedom fighter” undercurrents to the debate, as well as the broader issues that are being deliberated on elsewhere in far more depth and detail. The Committee must remember that we are dealing in a narrower sense with immigration and asylum legislation and rules. I ask it to view the new clause in those terms. I add the caveat that it is right and proper to align definitions and criteria in the Terrorism Bill with this Bill as much as we can as they proceed through both Houses.
For the reasons that I have given, it is necessary to move in the direction outlined in new clause 7. Not to pre-empt the hon. Member for Oxford, West and Abingdon (Dr. Harris), but amendment (a) to new clause 7 is effectively a rerun of what we talked about in debates on amendments to previous clauses. We shall consider the matters he raises. This Bill will evolve as it and, indeed, the other Bill progress through both Houses. I hope that amendment (a) is as probing as the hon. Gentleman’s previous amendments.

Nicholas Winterton: New clauses 7 and 8 are being taking together with their respective amendments. How the Committee deals with that matter is really up to it. As long as it is in order, I am happy to allow it to proceed.

Evan Harris: On a point of order, Sir Nicholas. I have two amendments in the group. May I say for the Committee’s benefit that I am happy to go along with the approach that the Minister suggested? I recognise that he will have to speak to new clause 8. I shall restrict my next remarks to amendment (a).

Nicholas Winterton: I understand that point of clarification. I am prepared to say from the Chair that I am happy for that process to be adopted.

Cheryl Gillan: The Minister’s officials detailed to my hon. Friend the Member for Woking (Mr. Malins) and me, and, I think, to the hon. Member for Oxford, West and Abingdon, that new clause 7 is about denying asylum to terrorists. We were grateful for the briefing. It was extremely helpful and reflected the way in which all parties are approaching legislation that is being dealt with in other proceedings in the House.
We all understand why the Minister wants to take these powers to himself. Nevertheless, as I think was acknowledged in our debates this morning, there will still be a fall-back position on a human rights basis, so a genuine asylum seeker will, in broad terms, be treated  in exactly the same way as a terrorist. That difficulty permeates the entire new clause, which is being added to protect our borders and our citizens.
Throughout our proceedings, we have been admirably briefed by organisations with an interest. I acknowledge in particular the thoughtful representations and detailed briefs that have been made available to Opposition Members and, I understand, to the Minister by the Immigration Law Practitioners Association. Incidentally, I concur with the hon. Member for Oxford, West and Abingdon that if the Minister comes back to us on new clause 8, that will be perfectly satisfactory. The hon. Member for Oxford, West and Abingdon will lead for Opposition Members on new clause 8, too, which shows just how amicable proceedings can be in.
The Minister will know that in ILPA’s view the new clause is unnecessary. Although I may not entirely agree with that, it is only fair that ILPA’s views are put to the Committee and that he has an opportunity to respond. It believes that the refugee convention provides all that is required.
New clause 7(2) shows that the measure is not only about terrorism but about every case in which reliance on the exclusion provisions arises. It refers to paragraph (F) of article 1 as a whole, not just to sub-paragraph (c), which deals with
“acts contrary to the purposes and principles of the United Nations.”
Paragraph (F)(b), for example, with which the Minister will be familiar, covers the commission of serious non-political crimes outside the country of refuge prior to admission as a refugee.
Statutory construction of the refugee convention was a feature of section 72 of the Nationality, Immigration and Asylum Act 2002. The Minister will probably remember that that was criticised by the United Nations High Commissioner for Refugees, who described it as suggesting an approach
“which is at odds with the Convention’s objectives and purposes”
and
“runs counter to long-standing understandings developed through State practice over many years regarding the interpretation and application of article 33”.
The Minister will also be familiar with resolution 1377, adopted by the Security Council in 2001. It stated:
“acts of international terrorism are contrary to the purposes and principles of the Charter of the United Nations, and ... the financing, planning and preparation of as well as any other form of support for acts of international terrorism are similarly contrary to the purposes and principles of the Charter of the United Nations”.
All is not as clear-cut as it looks, however, given that the UN has never adopted a definition of terrorism, as the Minister knows. He will be well aware of the debates surrounding the definition of terrorism and particularly what has been said by the Joint Committee on Human Rights.
ILPA argues that new clause 7, which refers to encouraging terrorism
“(whether or not the acts amount to an actual or inchoate offence)”
is enough to bring a person within the statutory construction. Thus it would appear that a person could be excluded from recognition as a refugee for actions that are not a crime under UK law.
The Home Secretary’s letter of 15 September referred to
“our scope to refuse asylum to those whose conduct is covered by the list of unacceptable behaviours”
that we helpfully have here, giving some indication of the anticipated scope of the clause. However, it is unclear whether a change of policy or drafting considerations have resulted in no express reference being made to the list of unacceptable behaviours that I have here to the provisions that will govern the clause.
ILPA would like the Minister to clarify whether the Government’s intention as concerns the list of unacceptable behaviours remains as described in the letter of 15 September. It contacted the Minister’s office in response to the consultation and he is familiar with the concern that it expressed at the imprecise and subjective nature of the proposed list of unacceptable behaviours. I would be grateful if he could make some comments on those ILPA representations.
It would also be helpful to ILPA if the Minister would deal with the point it has raised as to whether the new measures are directed against those wanted in other countries for crimes committed or to serve prison sentences imposed by a court. I think that, once again, he is familiar with the debate and it would be helpful if, at this stage, he could clarify that as well.
The extra breadth of subsection (2) makes it difficult to determine whether it is envisaged that cases involving reliance on the new statutory definition might also come up before the asylum and immigration tribunal or whether they will arise only before the Special Immigration Appeals Commission. ILPA would be grateful again if the Minister would clarify that matter as the response would provide a clue as to whether the powers are to be used widely or narrowly in terms of the range of people to whom they would be applied.
I have summarised most of the points that were put to us in the ILPA briefing, but I would like to say that I have the greatest sympathy with the Minister’s decision. In the same way that there is a tension between the freedoms of people in this country and protection of our citizens, there is also a dilemma over whether deportation is warranted when perhaps ultimately prosecution here or abroad could be achieved.
I have some difficulty in seeing that deportation provides a solution to our problems because matters could be exacerbated by exporting the problems abroad where feelings could foment rather than by dissipating the threat by putting in a bit more work here and relying on other matters. In particular, if we could rely on the painstaking work, that would give us the advantage of full investigations. Going through extradition proceedings might be a suitable alternative.
I would be grateful when the Minister responds to this part of the debate and to the hon. Member of Oxford and Abingdon, West if he could deal with that dilemma and give us his personal views.

Nicholas Winterton: I call the hon. Member for Oxford, West and Abingdon.

Evan Harris: Thank you, Sir Nicholas, both for calling me and naming my constituency correctly as you have always done. I am used to everyone else not doing so, including on occasions people who should be able to.
I have major problems with new clause 7 as does my party. I want to say at the beginning that we did not push new clause 4, about which we also have concerns, to a Division as this is a relatively open debate on the Second Reading of the new clauses. However, new clause 7 is of such concern that—I hope it will not be seen as going against the grain of these proceedings—I may press it to a Division. Once a new clause is in a Bill, it is not clear that we will have an opportunity to isolate our major concerns in a vote on Report or Third Reading.
Many of the concerns have been expressed on behalf of ILPA by the hon. Member for Chesham and Amersham (Mrs. Gillan). In keeping with previous practice, I will not repeat them. I want to make it clear that I would not simply report those concerns to the Committee, I share many, if not all of them. I will touch on those that are most serious.
New clause 7 seeks to construe article 1(F)(c) of the refugee convention. I am extremely dubious about whether it is appropriate and necessary to do that for the purposes that the Government want to see in law. There is a fundamental objection to writing in statute a construction of a convention that fetters the ability of judges to look at international approaches to this and the way case law evolves. It has never been questioned that the existing wording of the refugee convention and the construction that would and has been put on it by UK courts would not be sufficient. If in response to the hon. Member for Walthamstow (Mr. Gerrard) the Minister were able to identify some cases that were frustrating to Ministers—I understand how frustrating it is when judgment goes against them—one could understand their motivation. We could then have a better engagement but, in the absence of that, the principle of seeking to create a construction here is wrong.
The second and major problem with this approach is the vague and broad scope of the construction in subsections (1)(a) and especially (1)(b) of new clause 7 which refers to
“acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence).”
As the hon. Lady said, according to the ILPA briefing, it is possible that something within that may not be a criminal offence in this country, even under the new legislation, particularly because it does not talk about an actual offence. Moving away from our existing statute, if one has to refer to something, is extremely concerning and inappropriate. That is why  amendment (a) is more relevant than it was under new clause 4. I hope that the Minister will accept that it touches on keener issues here.
I do not defend to the absolute final numeral the amendment’s construction. Clearly it is commenting on clauses of a Bill, the numbers of which will change. Clearly, in that sense, it will not be accurate. It at least, however, lists the new offences on terrorism, including reference to section 1 of what will be the Terrorism Act 2006, which will at some point define, if the Government get their way as I suspect they will, the offence of encouraging acts of terrorism. It is not appropriate here to have the discussion that is due in Committee on the Terrorism Bill, but it is a much more reasonable place to have an amendment such as amendment (a) if one is to have a construction at all, which I think is wrong.
This goes to the point that I raised earlier. In different places, the Government are using different definitions. I am grateful that the Home Secretary yesterday and the Minister today recognised that there is an issue here and that we probably have to get the Terrorism Bill out of the way first and see where we are. However, it is appropriate in terms of scrutiny to flag this up now to see whether we can get a clear indication that the Minister is at least open minded on whether subsections (1)(a) and (b) of new clause 7 could be amended to refer to specific criminal acts in this country. If the Minister can assure me that that is under consideration it will make it easier for me not to divide the Committee on new clause 7.
There are problems with subsection (1)(a), which refers to measures that are not already legislated for, and we have concerns about the whole approach. I am tempted to indicate our anxiety by voting against the proposal without in any way criticising the manner in which the Minister and the Government have approached the matter. I, too, want to reiterate how grateful I am for the explanation provided previously.
I will not repeat the points that have been made in respect of ILPA but I want to draw attention to some other comments that have been made. The Minister will be aware that my remarks echo the points made by my hon. Friend the Member for Winchester (Mr. Oaten) in his letter of 18 October. I note the Home Secretary’s reply, dated 20 October, effectively saying that there are still major concerns about how it works.
The Refugee Council is also worried about the construction of article 1(F)(c). It states that the new clause
“represents a significant extension of the grounds for denying international protection for refugees.”
It shares my view that the convention, alongside UK criminal law, already provides the necessary tools for protecting national security and, in the absence of specific cases that can be identified, it is relatively strong in that view. It also shares my concern about the definition of relevant acts in the new proposal being  extremely broad, extending to acts that are not criminal and difficulties with the terminology relating to encouragement.
The problem has already been mentioned by the hon. Member for Chesham and Amersham in respect of the very broad definition of terrorism, which is already controversial. It will no doubt be subject to debate and amendment in the Terrorism Bill, which means that it is hard to see how the new clause is supportable. I say that without in any way wishing to undermine the intention to ensure that terrorists do not use the refugee convention to obtain refugee status, which would be inappropriate.
The hon. Lady also raised concerns about what many in this country would not see as terrorists except for the wide definition of terrorism in the Terrorism Act 2000. The Home Secretary made it clear in his evidence to the Joint Committee on Human Rights that he does not believe that there is any distinction between democratic freedom fighters and terrorists. However, many people will be concerned that those who take part in a democratic armed struggle involving serious damage to property but not targeting human life would be covered by the definition of terrorism in the 2000 Act, which is the definition of terrorism to which the new clause refers. Although we can get ministerial reassurances that the Attorney-General would be able to offer advice on whether certain people would not be covered, it is not necessary for us to try to define how the courts should interpret the provision.
The Law Society is also worried. It states that
“the statutory construction of Article 1(F)(c) is broad and will result in legal challenges to its application.”
It continues:
“The clause is silent as to burden of proof. The Society believes that given the severity of the issues concerned and the implications for the applicant, the clause should explicitly state that the burden of proof is on the Secretary of State to prove that the applicant falls within Article 1(F)(c).”
That is my substantive opposition to the wording of the new clause as drafted, together with the points made by the hon. Lady on behalf of ILPA.
I want to raise a further point , however, which I hope has not been raised before, about the width of subsection (2)(a), which states that the tribunal or the Special Immigration Appeals Commission
“must begin its consideration of the Refugee Convention on any appeal in which the rejection or decision is to be considered by considering whether or not Article 1(F) applies.”
It does not have to consider 1(F)(c), so it is broader than the new definition. I should be grateful if the Minister could comment on the significance of that provision, which has been explained to me as a way of short-cutting the approach of the tribunal. Is it appropriate for it to be broader than 1(F)(c)? It may be that it is appropriate to refer to 1(F)(c) rather than simply to 1(F) in the subsection because, as the Committee will be aware, article 1(F) of the refugee convention contains other provisions—(a) and (b)—that do not refer to terrorism. It is not clear whether the intention of subsection (2) of the new clause for this short-cutting of the consideration of the tribunal or Special Immigration Appeals Commission is meant to  refer only to terrorism, or whether it is an attempt to clarify matters in relation to the other parts of 1(F). Will the Minister clarify that matter?
My final point is about human rights. It has been argued that we need not worry about removing people when their human rights are at risk because the European convention on human rights will still apply. People can make representations on a human rights basis, appealing against removal, even if they cannot get refugee status under the refugee convention, because the European convention on human rights goes, in a sense, wider than the refugee convention.
However, it has been pointed out that recognition as a refugee carries with it enhanced rights, including the rights to family reunion, and that it is therefore vital to consider the words of the United Nations High Commissioner for Refugees handbook:
“Considering the serious consequences of exclusion for the person concerned ... the interpretation of these exclusion clauses must be very restrictive.”
That brings us back to an earlier point: when there is a convention that has been interpreted by the courts in the past, and a handbook, and UN resolutions that can be read and noted by judges, we do not need, nor is it desirable to have, a construction in our law, particularly when it is too wide and does not relate specifically to criminal acts committed in the UK.

Neil Gerrard: This new clause, of all the new clauses, concerns me most. I recognise that some of my difficulties with it are probably more to do with the difficulties in the Terrorism Bill—particularly when we start to look at some of the definitions that are in that Bill—rather than with the content of this Bill. No doubt we will debate that Bill. However, if I remember the timetable motion for the Terrorism Bill correctly, it will be dealt with before we reach Report and Third Reading on this Bill.
I am always a bit worried by attempts to put interpretations of an international convention into our domestic law. We had this argument to some extent in 2002 in relation to an interpretation of part of the convention. The UNHCR was not terribly happy about what happened then. I accept that interpretation always happens to a degree. There have sometimes been differences of view between different countries about how, for instance, the definition of a safe third country should be applied, even though that is in the 1951 convention. However, it always concerns me when we start to go down that road, and it is of particular concern in light of the atmosphere that we have had in the past few years, in which parties in the House have suggested that we should renege on the 1951 convention because it was outdated and no longer needed. We go down some dangerous roads when we start to put into domestic law interpretations of what that convention means and how it should be applied.
The Minister rightly said that there is an issue about the broadness of the definition, that some of those concerns will be discussed when we debate the Terrorism Bill and that we should align definitions  between the two Bills. It is clearly a sensible approach that whatever definitions appear in the Terrorism Bill will also apply here. There is some merit in looking not just at the definition of terrorism but at the offences specified in the Terrorism Bill. If those offences are clearly specified in the Terrorism Bill, I wonder how necessary it is to start including in this Bill definitions of what actions will result from article 1(F)(c) coming into play.
Terrorism potentially encompasses a wide range of activities. I know that many members of the Committee have worries, concerns and difficulties about how some of the definitions should be applied. Clearly, none of us wants to pass terrorism legislation. In particular, some of us who are London Members have seen the consequences in the past few months of terrorist action. None of us wants legislation that leaves loopholes that make it easier for people to commit similar acts.
The provisions relate to acts of terrorism that have happened outside the country, and that is much more difficult to deal with. The Minister referred to the bad terrorist/good terrorist argument, but genuine issues arise for many hon. Members about how one defines a terrorist or a freedom fighter, where they overlap, and what support we should be giving, or not giving, to someone in desperate circumstances who is trying to bring down an oppressive regime. I can think of instances in the past and of movements that many of us would have supported that were not entirely non-violent and were involved in damage to property, for instance.

Tony McNulty: I am curious. Will my hon. Friend will give an example of what we are talking about, which is not the individual’s ability so to do but the state’s—where a state has endorsed someone else’s “struggle” elsewhere as a matter of course?

Neil Gerrard: Both situations arise. I can certainly think of many instances of freedom movements that a lot of us have supported. I can also think of examples where states have been directly involved in financing movements that were attempting to overthrow governments. I can think of examples where the United States has been directly involved in financing movements that were attempting to overthrow governments. There is no question but that that has happened. The financing of the Contras is an obvious example.
One wonders what might arise in the future and how someone involved in such a movement might then be positioned if they were trying to apply for asylum. I am not pretending that these are not complicated and difficult issues; they clearly are. It is difficult to formulate completely objective rules, regulations and laws about them. There will always be elements of subjectivity. There is no question about that. They are also often coloured by people’s political views about which movements they support.
I appreciate that questions about how the phrase “encouraging terrorism” is supposed to be interpreted are difficult and delicate. I speak from the point of view  of someone who is not in any way a believer in violence as a means of achieving political ends, but then I do not live in a country where there is an oppressive regime.
Will the Minister clarify a couple of points? One relates to appeals. New clause 7(2) deals with some aspects of that. I understand the intention: if the appeals tribunal is convinced that paragraph (F) of article 1 applies, any appeal reliant on the refugee convention is bound to fail. However, that still leaves open the possibility of an appeal on human rights grounds.
I may be wrong on my next point, but I seek clarification. There is a reference to asylum claims that are rejected “wholly or partly” on the grounds that paragraph (F) of article 1 applies, so clearly there will be cases in which that is part of the reason for rejecting the claim. Can we know that if paragraph (F) of article 1 is brought into play, even partly, someone will still be entitled to an appeal? Is there the possibility of another part of the decision meaning that any appeal would be suspensive and that the person could be removed from the country before the appeal issues in new clause 7(2) came into play?
It is laid down how an appeal would work if the ground that we are discussing was the only ground on which the asylum claim was rejected. I am not clear on how the appeals come into play if that ground is part of the reason for the rejection and whether that would always mean that the appeal happened in the UK, or if there might be situations in which, in relation to refusals for other reasons—I have in mind certification, fast-tracking, third country or whatever—it became non-suspensive. I do not know whether that makes sense, but I seek clarification.
The Minister said that the measure would be used only in a small number of cases, and that is almost certainly right. I have not come across cases that I can think of in which the existing provisions were used. Nor have I have come across cases—this is the point that I raised earlier—in which the existing provisions have caused a problem, in that they have led to someone being granted asylum whom one would perhaps feel should not have been because of activities with which they have been involved.
We are highly likely to return to this issue on Report. That is almost inevitable because the Terrorism Bill will have come to a conclusion by then and the Government may want to change the provisions in the new clause. The new clause is important and the first opportunity that many hon. Members will have to debate and to move amendments to it will be on Report. Obviously, there is no guarantee, but it seems highly likely that we will return to it. I do not feel that this Second Reading debate, as it were, on the new clause is the point at which to say, “No, it should not be in the Bill”, but I remain to be fully convinced of the need for it.

Tony McNulty: I certainly agree with my hon. Friend’s final point about new clause 7 being something to which we are likely to return. It is probably the most substantive of all the new clauses. I profoundly disagree with the Immigration Law Practitioners Association’s comments that the new clause is unnecessary. I do not agree either with the Refugee Council when it says that the new clause goes too far or is objectionable for the reasons that it gives.
The debate on the Terrorism Bill is not quite a side issue to our deliberations—it certainly forms part of the text of the Bill—but none the less, on many of the comments that my hon. Friend has made, I wish things were stark enough to enable us to say, “there are certain circumstances in which we could of course fully support violence”. People are saying that there are circumstances, in this day and age, in which we fully support murder. I do not accept that there are. If people object to the approach, interpretation and the extrapolations of definitions of terrorism in the Bill in the context of the 2004 Security Council resolution 1566, to which, as I understand it, there were no objections, they are saying, as the hon. Member for Buckingham (John Bercow) said yesterday in unusually simplistic tones, that the difference between a freedom fighter and a terrorist is that a freedom fighter fights for freedom and a terrorist does not. I wish it was that straightforward in this day and age.
All the elements that we think are germane to the convention are certainly germane to any attempt to look at what we can define as terrorism. I want my hon. Friend to know that the issue is complex. I said—perhaps not as straightforwardly as I intended to in my previous intervention—that I cannot think of one explicit public pronouncement by a Government, in statute and certainly historically, that, with the exception of world wars, they fully endorse liberation movements or killings.
I accept the point, wrapped up as it was in cocaine and God knows what else—Oliver North and everybody else—about the United States’ support of the Contras. My hon. Friend will remember, however, that the fact that such a policy existed was not exactly in the public domain from the outset. It was drawn out kicking and screaming.
That is from where we start. It is glib to talk about freedom fighters and terrorism, but are we as a Government, on statute, really able to condone murder and the killing of people? The answer must be no. The answer in Security Council resolution 1566, which was passed nem. con., is no. That resolution does not go far enough.
I shall touch on yesterday’s Second Reading of the Terrorism Bill, because it is in part germane. My hon. Friend the Member for Wolverhampton, South-West (Rob Marris) asked, what if he were to endorse fully the Karen people in northern Myanmar’s attempts to blow up what they saw as empty trains? I wish it was that easy. One cannot somehow qualitatively determine the oops factor. They are not terrorists: they meant to blow up an empty train,  although what is an empty train? I am sure it has a driver on it at the very least. They did not mean to murder anyone. Oops, they did.
How does one clarify that? There is no such thing as an economic war when no one gets hurt. We were blindly lucky in this country when some people from the north London cognoscenti decided that they were anarchists and started blowing things up that they did not kill anybody. It was blind luck that the Angry Brigade did not kill anybody; it was not because of its members’ astute preparation. One does not blow a big hole halfway up the GPO tower and plan that no one gets murdered. Therefore we are talking about murder. The UN Security Council resolution would not cover, for example, the Provisional IRA’s announcement that it was back and had not gone away when it blew up Canary Wharf, because the explosion killed people. The Provisional IRA may have done it at half-past 5 or 6 o’clock in the morning, but it killed people. It was an act of terror by any definition.
That must be from where we start. It is, in part, pettyfogging to talk about national liberation movements in 2005. Through our foreign policy, we have positions against particular Governments whom we do not like and would encourage democratic opposition. It is a long way from there to say that it is all right because we have some sort of repression barometer and if the reading is over seven out of 10, it is okay to kill, maim and destroy innocent people. It is not. That is where the terrorism definition starts. It is enormously difficult. I fully accept what my hon. Friend the Member for Walthamstow says. Quite where one draws the line, I do not know. I was going to have a dig at the interwar coalition Government for not supporting the Spanish republic. That was quite the opposite situation. It was a state that we should have supported. There was an almost formal terrorist threat from insurgents in their own army. But I will not go there, Sir Nicholas.
We need to look at the context. I also accept the point that the hon. Member for Oxford, West and Abingdon made about amendment (a). There is a sharper element to the construction of the convention than previously. I am in a better mood now. I was going to say that ILPA’s claims that it was not necessary and all its comments on this bit of the Bill were a tortuous interpretation laced with cynicism. But I will not say that. I agree with the hon. Member for Chesham and Amersham that whichever bits I agree or disagree with, ILPA’s thoughts throughout the Bill have been well informed and focused, as we would expect.
I should like to touch on a few specific points. Even though there is a sharper relevance here, for the reasons I have suggested before, we are unable to accept amendment (a). The hon. Member for Oxford, West and Abingdon said that the clause should state that the burden of proof lies with the Government. It is a well-known position in our law that the burden lies on the party making an assertion. The burden will therefore implicitly lie with the Secretary of State and his ability to show that there are
“serious reasons for considering that a person falls within the scope of article 1(F)(c)”.
The implication is there under normal law and due process.
Although we are looking at specific redefinitions in the context of article 1(F)(c) in subsection (1) of the clause, subsection (2) is germane to appeals across all of 1(F). It is not a sleight of hand that 1(F)(c) is referred to in subsection (1) and all of 1(F) in subsection (2). As I understand it, subsection (2) refers specifically to the wider issue of appeals.
I was asked whether subsection (2) applies to terrorist cases. Yes, it applies to all cases in which the Secretary of State makes a decision in part or whole under 1(F) for the reasons that I have outlined. I was asked whether appeals would be heard by the Special Immigration Appeals Commission or the asylum and immigration tribunal. When a person to whom new clause 7 applies presents a threat to national security, he will be liable to deportation under powers that we are seeking to add to the Bill in new clause 8. The appeal for those people will be heard by SIAC and for other cases the appeal is likely to go to the AIT, unless the refusal decision is based on intelligence information, in which case the SIAC arrangements would apply. That is the normal practice.
We would expect the number of article 1(F)(c) cases that do not involve matters of national security for the reasons implicit in the clause to be relatively low. There is no internationally accepted definition of terrorism. Article 1(F)(c) of the refugee convention refers to acts contrary to the principles of the UN. The Government have a domestic definition of terrorism in the 2000 Act, as the hon. Member for Chesham and Amersham knows. Terrorism is contrary to the purposes and principles of the UN, as stated in a number of resolutions, not least the one I referred to earlier, resolution 1566. It was passed sometime in 2004.
I was asked whether this is a clause directed at crimes committed abroad. Terrorist acts committed abroad will be covered by the definition of article 1(F)(c) and subsection (1) of the clause. Other crimes committed abroad may come under article 1(F)(b) of the convention, which relates to non-political crimes committed overseas. It is nothing to do with us or the new clause. That happens anyway. A person excluded from refugee status on that basis would therefore be covered by subsection (2) in relation to how the appeal is approached. Again, subsection (2) is about all article 1(F) appeals. It refers to unacceptable behaviour or terrorism. The clause is about excluding those who commit, prepare or instigate acts of terrorism or encourage or induce them. Some of the unacceptable behaviours fall in the area of terrorism and encouraging terrorism and the clause covers them but the list of unacceptable behaviours goes wider to deal with issues such as serious criminality.
The new clause is not concerned with serious non-terrorist crimes, but as the hon. Lady is aware we highlighted serious criminality in section 72 of the Nationality, Immigration and Asylum Act 2002. My officials give me notes on everything and the third time that the hon. Member for Oxford, West and Abingdon raised the matter of appeals under article 1F(c) they sent me another note, so I apologise for reading it out.

Evan Harris: The Minister has no need to apologise. Are there any cases that were felt not to go the Government’s way in respect of getting refugee status under the unconstructed article 1F(c), which the Minister feels would be covered now? If not, what has triggered the need to make this construction and thereby fetter the judgment or discretion of judges in this country?

Tony McNulty: It goes back to what my hon. Friend the Member for Walthamstow was asking about earlier. I do not have the information to hand but if I can provide it I will. However, given the sensitivity of those cases I might not be able to do so.
In 2004 we were able to exclude some 32 people under the current regime. If that is not the correct figure I will get back to the hon. Gentleman. I do not know how many others would have been excluded if there had been such a construction in 2004. For those who are against it, it is a good question because it is almost unanswerable. I do not have that information and I am not sure that I could have it.
We are very clear where we are now, and not just because of July 7—throw in Bali and a host of other events. In the narrow focus on the definition of refugee and terrorist under the convention it is our right at least to start from the premise that these are people we would like to exclude. The Refugee Council is entirely right in saying that refugee status does afford a degree of benefits, far beyond simply the label, and, as I said to Maeve Sherlock and others, that is precisely why I will shout from the rooftops about the contributions that refugees make and about the sanctity of our commitment to the 1951 refugee convention—I hope that the hon. Member for Chesham and Amersham and her party are with us on that after their hysteria during the election; perhaps she will clarify it. We want those who will potentially be captured by this out of that equation; that is why the proposal is so important.
The Government’s proposals may be otiose, belts-and-braces measures, but I would far rather start from that perspective than a much weaker one.

Evan Harris: I thank the Minister for giving way and for his earlier response when he said that 32 cases may be covered. I know that unless one actively counts the ones that are not covered when one would want them to be, it is hard to get the numbers. However, to guide us in our future considerations it may be appropriate for there to be some specific instances that were not included, but which the Government envisage would be taken in by the proposed mechanism.
The main reason for my intervention is to ask the Minister about amendment (a). I was not sure when he dealt with it briefly earlier whether he accepts that it might be possible after the Terrorism Bill is enacted for him to get what he wants in respect of subsections (1)(a) and (b) by referring to the specific offences of encouragement and glorification including offences overseas under the existing terrorism definition in the 2000 Act. Can the Minister offer me some comfort that it may still be in play because it achieves what he wants it to achieve?

Tony McNulty: Again, that is an entirely fair point, and I am a fair man. I suspect that the answer is no, but that is to pre-empt both the direction of travel and the substance of the debate on the Terrorism Bill, or indeed of the deliberation on our Bill in the other place. Because I am a fair person, I am leaving the door open, but I suspect that the configuration that we have offered is more rounded in its completeness than that which the hon. Gentleman offers.

Evan Harris: In that case, although we have still to debate other clauses, I await what happens in that respect. I want to make the point that if we divide on new clause 7, it is not because of the Minister’s approach to amendment (a); it is because we are hostile to the idea of fettering the discretion of judges, which is a different point of principle. I hope he will accept that we are not ungrateful for his consideration of the amendment.

Tony McNulty: Again, in the nicest and fairest way possible, I accept the hon. Gentleman’s point but condemn his phraseology. I do not believe that what we seek to do in new clause 7 is to fetter the discretion of judges—he would not expect me to think that. That aside, I fully accept the notion, as my hon. Friend the Member for Walthamstow also suggested, that these matters will run and run, and rightly so, given their degree of seriousness. With that in mind, I ask the Committee to reject the amendment—

Nicholas Winterton: Order. I suggest that the Minister deals with Government new clause 8. He has been generous in dealing with all matters relating to new clause 7. However, I used my discretion to group new clauses 7 and 8, so perhaps he could now deal with new clause 8 and the amendment that refers to it.

Tony McNulty: Were I a brave man, I could say that before I was interrupted, I was about to commend new clause 7 and then move on to new clause 8, but that would be a lie on my part. I am grateful for your guidance, Sir Nicholas, and stand to move new clause 8, as it is part of this—[Interruption.] Challenging you, Sir Nicholas, is extremely brave, and I shall not be doing so. I learned that lesson as a neophyte Back Bencher on the Greater London Authority Bill, and I am not about to go there again. I am glad that they were not filming it at the time.
The new clause relates directly to deportation in terms of appeals. The provision may be even narrower in terms of those on whom it has an impact. However, we feel that, in situations in which deportation orders have been made on national security grounds, the current appeals system results in unnecessarily lengthy delays. That is no longer acceptable. The new clause is designed to streamline the process of appeals against deportation orders in national security cases. The aim is to be sure that those who threaten the security of the UK and its people will be removed from the UK more quickly than is currently the case.
The new clause allows the Secretary of State to issue a certificate that the decision to make a deportation order has been taken on national security grounds. In such cases, any appeal against the deportation order would be from abroad, unless the proposed deportee has made a human rights claim while in the UK. If such a claim has been made, the appeal may be brought from inside the UK, unless the Secretary of State then certifies that removal of the individual would not breach the UK’s obligations under the European convention on human rights. If such a certificate is issued, the substantive appeal against the decision to make the deportation order can only be brought once the affected party has left the UK. We again have that interplay between the various conventions.
The provision does, however, allow for an in-country right of appeal on human rights grounds to the Special Immigration and Appeals Commission against the Secretary of State’s decision to certify that removal of the individual would not breach the convention. That ensures that proposed deportees would not be removed if it would be a breach of their human rights to do so. We think that the clause will speed up the system because the hearing of the national security aspects of a case can be the most time-consuming element of an appeal. The future of this process will happen after removal, but the clause retains judicial scrutiny, prior to removal, of the Secretary of State’s decision that removal would not breach the human rights of the individual.
The Secretary of State’s decision to certify that removal would not breach the European convention on human rights cannot, however, be appealed from within the UK on asylum grounds as a person who is a national security threat is excluded from the protection of the refugee convention. As the purpose of the clause is to ensure that the national security aspect is only to be challenged from abroad, there would be no point in granting an appeal right on asylum grounds in-country as the appeal would certainly fail.
That does not raise protection concerns as the protection afforded by the ECHR, especially by article 3—prohibition of torture, inhuman or degrading treatment and punishment—is sufficiently broad to preclude the removal of someone to a country where there is a real risk to their life or freedom. There will of course remain a full out-of-country right of appeal against the decision to make the deportation order, at which stage any claim to refugee status can be fully considered by the commission.
Those are the clear reasons for the new clause. In these narrow cases of national security, the temptation is always to look at deportation as a whole. But we are on this narrow ground. I commend the new clause to the Committee.

Evan Harris: I am grateful to the Minister for introducing the new clause. I was hoping that he would talk about my amendment because it would delete a bit of the new clause. It would be helpful for the Minister to have the opportunity, if the procedures allow it, to  explain the meaning of subsection (4), which I seek to delete, so that I do not misrepresent what he seeks to do with it.
Mr. McNultyindicated assent.

Evan Harris: I am grateful. I will deal with the other issues relating to new clause 8. The Liberal Democrats have some concerns about the new clause. The correspondence between my hon. Friend the Member for Winchester (Mr. Oaten) and the Home Secretary was about whether the Home Secretary would be judge and jury and whether there could be a human rights appeal. The Refugee Council makes the same point. I am happy to accept that there is still the opportunity to make the application against a decision to deport on national security grounds, on human rights grounds through SIAC. I will not therefore pursue that line and that may save the Minister some time.
However, there is a concern about the fact that the fundamental appeal against national security grounds for deportation would be non-suspensive. In other words, it would be possible to do it only from abroad. It is extremely difficult and, as the Minister said, somewhat long-winded to do it in this country, let alone to do it from abroad. Provision is made for a limited appeal pre-removal to consider whether it would be a breach of the person’s human rights to remove them from the UK.
Is it appropriate to deal with that before dealing with the substance of the national security considerations in an appropriate confidential setting? There will be circumstances in which it is necessary to consider the elements of the national security case against a person before determining the risks on return. If evidence around that is deemed to be inadmissible, it is hard for SIAC to proceed without consideration of those grounds. If the proposed new statute in new clause 8 limits the ability of the appeal to do what it feels is appropriate, what would happen in those circumstances when it feels it is appropriate to hear evidence on that point?
That was my main concern about this new clause, apart from subsection (4). However, in case I have made an error in my interpretation of subsection (4), it would save time if the Minister explained its implication, and then I can decide what I wish to do.

Tony McNulty: Let me dwell briefly on subsection (4). The purpose of proposed new clause 97A(4) of the Immigration and Asylum Act 2002 is a recognition that the ECHR, particularly article 3, is fluid. New clause 8 provides a mechanism by which persons who represent a threat to national security can be removed from the UK.
A number of cases are before the European Court of Human Rights at present. Case law on article 3 may change in the near future to allow the risk of prosecution to be balanced against the danger to national security. An assessment will be made on whether removal would breach article 3. As a result, SIAC may be required to examine the substance of the national security case.
If the balancing test is introduced—any number of cases before the Court that are at various stages in the process do involve that balancing test—we can use subsection (4) to readjust our statute in the light of that subsequent case law. If we do not have subsection (4) and some of the cases that are before the Court do confirm or introduce the notion of a balancing test, that will prevail anyway, and all that the removal of subsection (4) would do would be to leave the statute in a clumsy position, because we would be unable to change it by order to reflect any subsequent changes that the Court might make.
I agree that were there not at least one case—perhaps a couple of others—before the Court, it might be too prissy and tidy to include the option of the order just in case the Court might alter its interpretation of the convention. Given that discussions on article 3 will continue for a long time to come, the substance of the cases—one is a Dutch case—that the Court potentially will discuss will all revolve around the balancing test. For completeness and tidiness it is more appropriate to have a little flick switch that says we can alter the proposed new section by statutory instrument, subject to resolution of both Houses, and include any transitional provision between what prevails now and subsequent case law.
In the interests of tidy rather than sloppy legislation, it seemed appropriate to include subsection (4). No ulterior motive, which some may ascribe to it, exists. It is not a mini Henry VIII clause that says, “Well, actually, here is the new clause and here is what it says about appeals deportation. For God’s sake don’t read subsection (4); we’re slipping in a little bit of power that means the Home Secretary can do whatever he wants, whenever he wants.”
I assure the hon. Gentleman that that is not the position. Subsection (4) is merely a tidying-up provision as a result of some substantive cases that are before the European Court of Human Rights. Rather than leave one position on statute and another position prevail because of changes to case law, it was included. Therefore I ask that the amendment be withdrawn and that both new clauses, including all of the proposed new section, stand part of the Bill.

Nicholas Winterton: I intend to call the hon. Member for Oxford, West and Abingdon, because the Minister was dealing specifically with his amendment.

Evan Harris: I will stick to the amendment, and I will be brief. I accept what the Minister has said. The purpose of the amendment is not to allege that subsection (4) purports to do something other than what the Minister says. His officials helped me again greatly by showing me what the Minister has set out as the true reason behind subsection (4)—it is a way to tidy up the statute.
The purpose of the amendment was to give me an opportunity to debate two points. The Minister has raised one of them. If people are due to be deported under this provision and, in the middle of it all, an order is made, it is somewhat unfair just to leave them  to the balancing that might occur, although I am not sure that I followed the detail of how that would apply and we will have to return to it. It was an appropriate opportunity briefly to discuss the Government’s policy in relation to trying to reverse European jurisprudence; indeed, I think it is the only aspect that deals with it specifically. My understanding is that it is not the Government’s complaint that UK courts apply a higher test against the Government on article 3 on torture than the European courts, as otherwise they could legislate to bring it down to European court jurisprudence. The Government are not doing that; they are urging the European Court to change its decision in the Shahal case, which was a 12/7 decision, from the majority to the minority.
Subsection (4) is unnecessary. I am relatively confident that the Government will not succeed in changing jurisprudence, and rightly so, because of the increasing recognition of the important nature of article 3; the 1996 judgment is relatively recent—it is not based decades ago in a previous European context—and it was a grand change of judgment. More important, the majority judgment has been reiterated frequently and consistently by the court.
I put it politely to the Minister, as it was suggested to the Home Secretary by worthy lawyers, that the proposal is probably not an appropriate approach for the Government. It would be far better if they offered us legislation based on recognising the fact that article 3 is sacrosanct; it should not be balanced against national security. It would be more appropriate for us to consider clauses that are controversial enough, but which do not hold out the hope that there will be the ability to balance a fundamental right not to be tortured, even as the Home Secretary said in the European Parliament, against the right not to be blown up in this country, which is a false comparison.
This is a probing amendment to give us the opportunity to raise this important matter. I hope that we will be able to debate the Government’s policy on the issue in the House because their approach is fundamentally different from that of my party and others.
I do not intend to press the amendment to a Division but I am grateful for the opportunity to raise my concerns about the Government’s approach to European court jurisprudence.

Cheryl Gillan: I have two small points to make on new clause 8, which relates to national security. In some instances, the success of the operation will depend on the delicate international diplomacy in which the Government have been engaging. I refer specifically to the assurances and arrangements that have been secured with Jordan and Libya. I do not want to ask the Minister to go into details on the other countries with which they are conducting delicate negotiations, but there appear to be some illogicalities. I understand that the arrangements with Jordan and Libya are to ensure that if someone is returned no torture will take place and they are not in peril of their life and limb. However, by virtue of the nature of torture or of the  liability to be detained in their home country, there is no way in which the Minister could monitor their return. Does that render pointless the diplomatic assurances he has received?

Tony McNulty: Without wishing to be sidelined into a debate about memorandums of understanding, they will be not be signed unless there is a monitoring dimension to them. The hon. Lady can be assured that monitoring is part and parcel of the process.

Cheryl Gillan: I am reassured by that. I wanted to ascertain that there was a monitoring element, particularly with respect to countries where negotiations are ongoing. Otherwise, it renders the memorandums of understanding pointless, as I am sure everyone knows.

Evan Harris: Before the hon. Lady moves away from memorandums of understanding, and given that you, Sir Nicholas, have allowed a debate on this, I want to make a further point, although perhaps it is not directly germane. I invite the hon. Lady to recognise that having a memorandum of understanding with a country because it has a record of torture suggests that there is a problem. The presence of a memorandum of understanding, which I do not support, raises the question of whether it is legitimate to go down that path at all, irrespective of the fact that it is a bilateral arrangement to tackle torture, which should be done internationally, under the UN convention on torture and not on the basis of nation-by-nation bilateral agreements, regardless of the monitoring arrangements.

Cheryl Gillan: The hon. Gentleman is entitled to his view, but I disagree. It is eminently sensible that the Government should negotiate on an individual basis with those countries. The problem concerns not only our international obligations or those of the receiving countries, but the safety and security of the UK. I would not want to tie the Government’s hands in terms of who they negotiate with and on what grounds.
I also want clarification on article 33 of the refugee convention. I presume that the Minister is familiar with the non-refoulement obligation on the prohibition against torture. It is certainly a normal instance in international law and means that people cannot be sent back to their death or to torture. However, some take the view that the memorandum of understanding that has been concluded with Jordan is incompatible with the refoulement obligations. Can the Minister comment on that? If there was a view that the UK was weakening the global ban on torture, I would want that refuted and clearly spelled out. Can he give us those reassurances?

Tony McNulty: I can.

Question put, That the clause be read a Second time:—

The Committee divided: Ayes 15, Noes 2.

NOES

Question accordingly agreed to.

Clause read a Second time, and added to the Bill.

New Clause 8 - Appeals: deportation

‘(1)After section 97 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeals: national security) insert—
“97ANational security: deportation
(1)This section applies where the Secretary of State certifies that the decision to make a deportation order in respect of a person was taken on the grounds that his removal from the United Kingdom would be in the interests of national security.
(2)Where this section applies—
(a)section 79 shall not apply,
(b)the Secretary of State shall be taken to have certified the decision to make the deportation order under section 97, and
(c)for the purposes of section 2(5) of the Special Immigration Appeals Commission Act 1997 (c. 68) (appeals from within United Kingdom) it shall be assumed that section 92 of this Act—
(i)would not apply to an appeal against the decision to make the deportation order by virtue of section 92(2) to (3D),
(ii)would not apply to an appeal against that decision by virtue of section 92(4)(a) in respect of an asylum claim, and
(iii)would be capable of applying to an appeal against that decision by virtue of section 92(4)(a) in respect of a human rights claim unless the Secretary of State certifies that the removal of the person from the United Kingdom would not breach the United Kingdom’s obligations under the Human Rights Convention.
(3)A person in respect of whom a certificate is issued under subsection (2)(c)(iii) may appeal to the Special Immigration Appeals Commission against the issue of the certificate; and for that purpose the Special Immigration Appeals Commission Act 1997 shall apply as to an appeal against an immigration decision to which section 92 of this Act applies.
(4)The Secretary of State may repeal this section by order.”.’.
(2)In section 112 of that Act (regulations, &c.) after subsection (5A) insert—
“(5B)An order under section 97A(4)—
(a)must be made by statutory instrument,
(b)shall be subject to annulment in pursuance of a resolution of either House of Parliament, and
(c)may include transitional provision.”.’.—[Mr. McNulty.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 9 - Information: embarking passengers

(1)Schedule 2 to the Immigration Act 1971 (c. 77) (control on entry, &c.) shall be amended as follows.
(2)In paragraph 3(1) for the words from “and if he is not” to the end substitute—
“and, if he is not a British citizen, for the purpose of establishing—
(a)his identity;
(b)whether he entered the United Kingdom lawfully;
(c)whether he has complied with any conditions of leave to enter or remain in the United Kingdom;
(d)whether his return to the United Kingdom is prohibited or restricted.
(1A)An immigration officer who examines a person under sub-paragraph (1) may require him, by notice in writing, to submit to further examination for a purpose specified in that sub-paragraph.”
(3)After paragraph 16(1A) insert—
“(1B)A person who has been required to submit to further examination under paragraph 3(1A) may be detained under the authority of an immigration officer, for a period not exceeding 12 hours, pending the completion of the examination.”
(4)In paragraph 21(1) after “16” insert “(1), (1A) or (2)”.’. —[Mr. McNulty.]

Brought up, and read the First time.

Tony McNulty: I beg to move, That the clause be read a Second time.

Nicholas Winterton: With this it will be convenient to discuss Government new clause 10—Fingerprinting.

Tony McNulty: New clause 9 brings the powers of examination at embarkation control under paragraph 3 of schedule 2 to the Immigration Act 1971 in line with the powers of examination on arrival under paragraph 2 of schedule 2. The new clause provides for an immigration officer to examine a departing passenger for the purpose of establishing his identity and immigration status and, if that is not clear from the initial examination, to detain and subject the person to further examination until he can satisfactorily establish his identity and/or immigration status. Detention is permitted for a period of not more than 12 hours.
The immigration service and other services at our ports must have a passing interest in those who are leaving the country as well as an interest in those coming into it. Interesting things have been discovered in the context of the embarkation controls that have been restored to varying degrees since 7 and 21 July, but there is a lack of clarity, if not an absence of power, for our immigration services and others at ports to take details and, if necessary, to detain for up to 12 hours those leaving the country in order to ascertain their details. It must make sense for those services so to do in this day and age.
The improvements to immigration officers’ powers to examine departing passengers in new clause 9 are complemented by provisions in new clause 10. It amends section 141 of the Immigration and Asylum Act 1999, which provides for the taking and storage of fingerprints. It amends section 141(7)(d) to enable fingerprints to be taken from a person who has been  detained under schedule 2 powers and to be stored. The new clause is necessary because many people are detained, particularly at ports, without being arrested.
In particular, new clause 10, in conjunction with new clause 9, will permit fingerprints to be taken from an embarking passenger who has been arrested or detained pending further examination at an exit control. A key component of establishing identity is the provision of a biometric. The immigration fingerprint bureau contains a store of fingerprints against which persons of doubtful identity could be checked before departure from the UK. This is a valuable tool to reconcile immigration records and minimise fraud before the e-borders programme is implemented. It will also help to provide intelligence to prevent people from returning to the UK with false identities.
In addition to the fingerprinting provisions of section 141 that new clause 10 amends, section 144 enables the Secretary of State to make equivalent provision in relation to other external physical characteristics—in particular, features of the iris or other parts of the eye. The ability to use the most effective biometric technology as it develops is an important tool in combating immigration offenders and identity thieves—those who are detected on arrival in and those who are detected on departure from the UK.
New clause 10 also amends section 141 of the Immigration and Asylum Act 1999 to enable detention custody officers in immigration short-term holding facilities to take fingerprints from immigration detainees. I remind hon. Members that those facilities are now covered by the inspectorate as per clause 39.

Cheryl Gillan: I commend the Minister on his succinct explanation of new clauses 9 and 10. They find favour with Conservative Members. He gave the example of useful information being gleaned by stopping and examining people on departure from this country. That must be the right way to go in the current circumstances. Indeed, only a short time ago the Government were somewhat embarrassed when a certain gentleman left this country unbeknownst to them, and announced from abroad that he was out of their jurisdiction and safe elsewhere when they were interested in speaking to him.

Tony McNulty: Jeffrey Archer?

Cheryl Gillan: No, not Jeffrey Archer.
I wish to ask the Minister a few practical questions about these new clauses. Who will be involved in carrying out the detention? Will they be immigration officers, customs officers, police or Home Office personnel? Who will be responsible for physically carrying out the stopping and searching of these individuals? Also, what will the position be if private contractors are brought in and there is a dedicated border force of any nature?
The Minister acknowledged that short-term detention facilities will now be overseen by Her Majesty’s chief inspector of prisons, which I welcome.  However, I would like to know where those centres are going to be located. Will the arrangements be separate from the existing arrangements in our ports and airports, because of the nature of the individuals who are expected to be held in these cases? Also, why is the length of time only 12 hours? If there is any contention over information, will 12 hours be long enough? How was that period arrived at?
What happens if the individual is detained and therefore misses their flight, and their air ticket does not allow the money paid for it to be commuted to another ticket? Who will then pay for that individual to leave the country, and what happens if that individual does not have the wherewithal or cannot afford to buy either another air ticket or a passage on a boat? Who else will be informed about that person’s detention? Will a relevant embassy or high commission be informed? Will the detained individual have a right to legal advice and representation? If the individual misses a flight and the airline personnel know that that individual has been detained by the authorities pending further inquiries, could that not pose a danger to the individual?

Evan Harris: The hon. Lady is asking relevant questions, although there is a slight inconsistency, because one would not want embassies and their staff to be told if the notification of the national authorities might lead to the concern that the individual could be in danger. The question might be even better put in this way: will the detainee be able, if they so wish, to contact consular or embassy staff for support during those 12 hours? That would be better than an automatic referral, for the reason that the hon. Lady rightly gives in her subsequent question.

Cheryl Gillan: I am not often grateful to the hon. Gentleman but, in this case, I acknowledge that that might have been a better way of putting the question.

Tony McNulty: Steady.

Cheryl Gillan: Well, we are on the home run so I can afford to be generous to the hon. Member for Oxford, West and Abingdon. I have noticed that the Minister has been generous to the hon. Gentleman today, too, which is a turn of events.
Would the individual be allowed to contact anybody, such as his family or friends, to tell them of his detention? What will the situation be if the individual is travelling to another European country? Will that create any problems, because, as we constantly hear, the European Union is about the free movement of goods, services, and people? Does the Minister not think that some issues may need to be addressed, or has he already covered them?
Lastly, on new clause 10, we have talked about biometrics and fingerprinting at length. I think that the Minister is of the view that eventually we will unfortunately have to consider the taking of biometric details of everybody travelling in and out of our country. That means that we will face some difficulties.  I can see the Under-Secretary nodding. We cannot put our heads in the sand about the issue. The situation I described might arise sooner rather than later.
What happens if the individual refuses to have their fingerprints taken in that situation? What will happen over refusals? After all, people will be detained in a short-term facility. Does the Minister envisage that if enough refusals are forthcoming from the person leaving the country, the official detaining them would just let them go because it would be more important to have them out of the country than remaining in it? I hope that that is a suitable series of questions on the practical applications of the two new clauses that will enable us see what is in the Minister’s mind.

Evan Harris: I will not repeat any of the points made by the hon. Lady, but I want to ask a further question. I hope that I will be forgiven if it has already been dealt with. What will the inspection regime be for this particular facility of detaining embarking passengers—people leaving the country? Is it already covered by the short-term holding facilities that were mentioned? Perhaps the Minister will confirm that. Similarly, I hope that he will confirm that things will be able to be inspected by the chief inspector of prisons and also that the independent complaints procedure that the Minister is thinking of introducing would apply to the behaviour and conduct of immigration officers in this case.

Tony McNulty: Again, the questions were all entirely fair and reasonable. We need to start from the perspective that if we went to the full extent of the immigration service’s powers now, which clearly would not be practical, it could arrest everyone about whom they had remote suspicion, if that was its wont. That would not be terribly effective; in today’s circumstances, neither would taking a view that as these people are at the door marked exit, they are no longer our concern until they come back to our shores. That would also be inappropriate.
This is about striking a balance in the middle. It is not saying that where there is the remotest suspicion we will detain someone in a short-term holding facility for 12 hours. We think, as a matter of experience, that it should not take any longer than that and, in most cases, far less to establish fully an individual’s details. Currently, we are able to take all that information from someone only if they are arrested. Clearly, we do not want to arrest everybody. In previous manifestations, the hon. Lady’s party might have wanted to do so, but we do not.
In that regard, having the facility, which is all that the two new clauses propose, to establish beyond doubt a person’s identity as they are leaving and to take a record of that by biometrics is a more than appropriate halfway house. That will be done within the context of what we have already at ports; no new centres or new facilities are involved. The hon. Lady asked about that. It seems more than appropriate that that is the way to go forward.
Mrs. Gillanrose—

Tony McNulty: Before I let the hon. Lady intervene, I must explain that biometrics are coming anyway in terms of international documents for travel; in a European context, there will be a start next year. Let us consider beyond that. All the G8 and subsequent discussions that we have had at an international level have shown that there is a will across the globe to move in that direction to establish firmly individuals’ identities. Biometrics are coming anyway and it is more than appropriate that this is the way to respond.

Cheryl Gillan: I simply wish to probe the Minister on cost. There will obviously be new installations for taking details and analysing them on the spot. Some idea of the investment and the resources being put into that would be useful.

Tony McNulty: We are considering that. I have said before that we will move towards a full e-border position—I do not like the phrase either—probably by 2010. The provisions in the Bill are part of a process. Rather than wait and then have a big-bang flick of the switch, we are already putting resources into embarkation controls; and there is significant recruitment in the immigration service, particularly at warrant officer level. All told, there are some 600 or 700 new posts. Those interim measures will take us from where we are now to the full use of e-borders. As and when I can, I will happily provide the hon. Lady and the Committee with a rough outline, but she will appreciate that we are not in a position to do that now.
We already have powers under the Immigration and Asylum Act 1999 to use “reasonable force” to secure fingerprints should the Bill be enacted. It is an obligation on our part and we are looking to fulfil it.
If a person is detained and cannot depart on the planned flight, it will be necessary to inform the airline that that person will not be travelling. You would have to do that. Many people will know that once you are on a plane and someone else is getting off the plane, or someone never made the plane but their luggage did, a security situation will arise, and you—not you personally, Sir Nicholas—would be stuck on the tarmac. Therefore, if the luggage has gone ahead and the individual does not quite make it for whatever reason, one needs to tell the airline that the individual will not be travelling so that their luggage can be removed.
We have said that 12 hours is enough. I have answered the financial points. The question about short-term holding facilities has already been answered: they come under the inspection regime, as indicated. I will certainly take that point away and think about it, but I think that there is no need to do so given that we are putting the short-term holding facilities—no others are envisaged—under the umbrella of the inspectorate. Separate oversight of inspection facilities only for departing passengers might be a bit over the top, but I may have misinterpreted things entirely.
In conclusion, we believe that embarkation controls, the introduction of biometrics from next year onwards and the capture of data is the right way to go. It is the way that most other countries will go.

Cheryl Gillan: Before the Minister sits down, will he comment on the individual’s ability to contact a legal adviser, or his embassy or high commission?

Tony McNulty: The hon. Lady is right; I did not deal with that. The power to detain a person pending examination is an administrative power for immigration purposes, and it is for a maximum of 12 hours. If the individual is subsequently arrested for an offence, the usual safeguards of the Police and Criminal Evidence Act 1984 will apply, including the right to legal representation. It is an administrative device. Before the 12 hours are up, there will be no right to legal representation and none of the other rights afforded by PACE. It is not an arrest for a criminal offence. It is detention under the administrative powers of immigration legislation. If it goes beyond 12 hours, the legal rights and powers under PACE will kick in, but not before—and probably rightly so.

John Leech: Very briefly, I do not think the Minister has addressed the question raised by the hon. Member for Chesham and Amersham on the people who will be doing the detaining. Two days ago, the Under-Secretary suggested that we could afford private contractors to do the work to free up existing officers to do more important work. The detention of people under issues of national security is clearly important. I want some clarification as to whether the Minister will be using private contractors for this work.

Tony McNulty: There are two points. The particular powers under the clause will apply to the immigration service and immigration officers or, where there are stronger concerns, to special branch. I need to make it clear that as I understand it—unless some inspiration comes fluttering behind me in the next couple of minutes—all our short-term holding facilities at airports are already run by the private sector, but it does not carry out the other activities. When it comes to embarkation and the capture of information herein, I understand that immigration and special branch will be involved precisely because it is such a finely focused art. To compare it to searching a vehicle is a bit silly.

Cheryl Gillan: I presume that the Minister envisages that the inspection will take place after the security inspection but before the passenger is truly airside. Obviously, that is why there would be difficulties as the luggage would go on to the aeroplane before that point and would have to be pulled off.

Tony McNulty: That is right. Since July, I have been to a number of airports and seen immigration officers doing their jobs. As the officers go about their business and look for further information or whatever else under today’s provisions, which are largely for incoming rather than outgoing passengers, an individual might have to wait in the short-term facility. They would not have to wait in a cell, but the facility would be a secure waiting room, for want of a better term. That is an entirely proper and appropriate  division of labour. It seems to work well and has been formalised, in a statutory sense, along with escort services—in the terms of escorting detainees, not the escort services on the back of the magazines that the hon. Member for Woking reads. [Laughter.] I will come back to him, do not worry.
With that caveat and inspection cover, I recognise the points made and commend the new clauses to the Committee.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 10 - Fingerprinting

(1) Section 141 of the Immigration and Asylum Act 1999 (c.33) (fingerprinting) shall be amended as follows.
(2)In subsection (7)(d) for “arrested under paragraph 17 of Schedule 2 to the 1971 Act;” substitute “detained under paragraph 16of Schedule 2 to the 1971 Act or arrested under paragraph 17 of that Schedule;”.
(3)In subsection (8)(d) for “arrest;” substitute “detention or arrest;”.
(4)At the end add—
“(17)Section 157(1) applies to this section (in so far as it relates to removal centres by virtue of subsection (5)(e)) as it applies to Part VIII.”.’.—[Mr. McNulty.]

Brought up, read the First and Second time, and added to the Bill.

Question proposed, That the Chairman do report the Bill, as amended, to the House.

Tony McNulty: On a point of order, Sir Nicholas. You will know that this is a not a point of order, but we have reached the end of our deliberations and it is traditional to make some passing comments before we dispatch the Bill back to the House.
First, I thank you enormously for all that you have done as Chairman, Sir Nicholas, in as exemplary a style as ever. I am sorry, given that we have finished our deliberations, to have missed all the Bills that you have chaired between the Greater London Authority Bill of 1998-99 and now. I am sure that they would have been enormous fun. In passing, I apologise first for having verbally deprived you of your knighthood and subsequently for having deprived you of it in a letter today, which starts “Dear Nicholas” rather than “Dear Sir Nicholas”. That is not a matter of disrespect and I hope that you will forgive me. I also thank Mr. Illsley, who covered and dispatched proceedings with equal charm and efficiency.
I also thank, as Ministers used to forget to do when I was a Whip, my hon. Friend the Member for Enfield, North (Joan Ryan) on her conduct of matters. At least in part, those dark arts to which I was privy in a previous manifestation are reflected in the temperate—or otherwise—nature of a Committee as it carries out its proceedings. Although we have dealt with complex issues, we have done so in a harmonious and, for the most part, thoughtful and informed way.
I thank, too, all colleagues on both sides of the Room, particularly those on my side. This is a new experience for most of the hon. Members on the Government side, and I have to say that this is as good as it gets—they have been blessed in having a good experience on their first Committee. I have debated plenty of Bills that have been either far more boring or far more hostile—that is fun for about five minutes, and then it gets worse. That is not to imply that it is all downhill from here, but perhaps we can hold a conference once my hon. Friends have sat on a couple of other Committees. They can then come back and say that I was right.
I have also to say—and entirely mean—a huge “thank you” to those on both Opposition Front Benches for the way in which they have conducted matters. It could almost be considered strange, given the nature and tone of the election, that we managed to look at these very serious matters in a far more grown-up way than would have been the case had those on the Opposition Front Bench reflected people’s deliberations during the election. I shall take the Front Benchers as they are any time rather than those who would be here doing rather pale imitations of Alf Garnett and Enoch Powell in the way that the Leader of the Opposition did during the election. I am very grateful for that.
I would also say in passing, and again sincerely, a thank you to the Home Office officials—I am a little pedantic in that three or four years on as a Minister, I still scribble through letters and utterances that are supposed to go out in my name, crossing out “my officials”. They are not mine; they are the country’s. As the Committee has seen, they have been, to-ing and fro-ing rather like an American football team with the offensive team and the defensive team going on and off. A huge amount of time and many officials have been involved, and I am grateful to all of them.
Finally, I am enormously grateful to Hansard for recording what I freely accept has—occasionally, and only occasionally—been my drivel. It looks quite nice the next day. While I try to avoid giving the Committee the impression that I do not have a clue what I have just said or what it meant, I know the next morning when Hansard has done its excellent work. I must also thank the Doorkeepers, whom we have not troubled that much with locking and unlocking the doors, for which I am grateful to everybody. The Bill is dispatched after a good deal of informed deliberation, for which I thank the entire Committee and particularly, again, you, Sir Nicholas.

Humfrey Malins: Further to that point of order, and briefly, Sir Nicholas, may I repeat from these Benches those thanks to you and your fellow chairman, Mr. Illsley, for the very courteous and efficient way in which you have chaired the Bill? We would like to couple that with our thanks to the excellent Clerks, Dr. Benger and Mr. Cranmer, who have been of such assistance to us all. Our thanks to the police, the Doorkeepers and Hansard for the excellent work that they do, and to the officials, who have been so kind as to brief us through the Minister’s good offices on a number of matters.
I thank my hon. Friends, the Members for Ilford, North (Mr. Scott) and for Shrewsbury and Atcham (Daniel Kawczynski), for their support. It would be wrong of me not to thank my Whip, my hon. Friend the Member for North-West Norfolk (Mr. Bellingham); otherwise I should be in great trouble. I thank him most warmly for his support and help. I particularly thank my hon. Friend the Member for Chesham and Amersham, who has shouldered a great deal of the work on the Bill and has spoken so well on behalf of international students and educational institutions. She has worked terribly hard and I am most grateful. I am sure that we will revisit all those matters on Report.
I thank the Minister for the way in which he has conducted himself, and the hon. Gentlemen on the Liberal Benches likewise. It has been a good-tempered Bill. The Minister said that those hon. Members who have served on a Standing Committee for the first time would have found this Committee an easy experience because it was good-tempered and the Bill was interesting. Both facts are true, but he failed to add that the Bill has also been dispatched in a couple of weeks, whereas you, Sir Nicholas, the Minister and my hon. Friend the Member for Chesham and Amersham will know that, in the past, many Bills have taken months to be considered in Committee, which has always been an enormous pleasure to those who have taken part in such proceedings. Who knows what will happen in the future? With those thanks, I shall now resume my seat. I give final thanks to the Minister for his courtesy throughout the proceedings.

Evan Harris: Further to that point of order, Sir Nicholas. Without repeating the thanks that have just been made to the officials, the Doorkeepers and police by the hon. Member for Woking, I wish to endorse what he said. I thank you, Sir Nicholas, in particular, for making our proceedings a pleasure. I used to be scared of Chairmen but, given the past couple of weeks, I cannot understand why. You have been helpful in guiding me and other hon. Members, especially those who are new, Sir Nicholas. The same applies to Mr. Illsley.
I share the endorsement of the Minister for the efforts made by those, including Labour Members, who are relatively new to their positions and to the House. I pay a particularly warm tribute to my hon. Friend the Member for Manchester, Withington who led several clauses for the first time in Committee and did so sometimes in isolation. I thank the Minister who, in both good moods and bad moods, has made concessions. I have sat through proceedings in which no concessions were made whatever, and I certainly endorse his view about the difference between this Committee and the Committee that considered the Greater London Authority Bill, which I was told lasted for weeks and had hundreds of clauses.

Tony McNulty: Three months.

Evan Harris: Yes, three months. I remember my hon. Friend the Member for North Southwark and Bermondsey (Simon Hughes) being delighted that the insertion of a comma proposed in one of his amendments was accepted, although precious little else was.
I compliment the hon. Member for Walthamstow for surviving what was a traumatic occasion for him, given the risks that he runs in being too closely identified with Opposition arguments and Opposition Members. He conducted himself with great skill. I wish finally to thank Conservative party spokespeople and the Labour Whip for the way in which they kept me informed about the timings with which we have had to deal.

Cheryl Gillan: Further to that point of order, Sir Nicholas. I wish to bring up the rear by associating myself with the remarks that have been made by my hon. Friend the Member for Woking, with the exception of those that he made about myself. I, too, wish to thank both Ministers for the way in which they have conducted the proceedings on the Bill. Last night in the Smoking Room, I said to the Minister for Immigration, Citizenship and Nationality who has led on the Bill that I was impressed by his command of the brief. I now put that on the record. It is important to do so, even if we have differences of opinion. It is a pleasure to listen to Ministers who seem to understand what they are talking about rather than always hearing them reading out the words of support that have been written by their admirable officials.
I also pay tribute to my hon. Friend the Member for Woking. He has been serving on two Standing Committees at the same time. He has put in a formidable performance. Given his work in the other proceedings, as well as his contributions to this Committee, it would be remiss if I sat down without acknowledging that phenomenal effort. These proceedings are very much the unsung part of our work in this place, but they are so important.
I want to acknowledge, in particular, members of organisations and those individuals who have briefed us. They have been thorough and have worked extremely hard. I hope that they consider that we have done justice to their views. Even though they may not be the views that we personally hold, I hope that we have at least given them a suitable airing. We look forward to further briefings for our debates on Report and Third Reading, stages that are still important.
Lastly, I wish to acknowledge that what we have been doing in Committee will affect many people during the years to come, not only visitors to this country, but people who work on our behalf and who will be enforcing what will eventually become law throughout our ports and at our borders. I say a big “thank you” to those immigration officers and staff who help to keep this country safe. Even though we might not agree entirely with the details of the Bill when it reaches the statute book, we hope that, in whatever form the Act finally appears, it will help them to do their job better to defend this country and its people.

Nicholas Winterton: The final word will rest with the Chairman. The proceedings in this Standing Committee have been an example of Parliament working at its best. I congratulate those on the main Front Benches on their commitment, work and ability. I include in those thanks the Liberal Democrats. The proceedings have been exceptional. I say to the Whips that it is a pleasure to see the way in which they have sought to work well together for the benefit of Parliament. I hope that each member of the Committee has enjoyed the proceedings. They have certainly been enjoyable from the Chair’s point of view. Like others, I thank my Clerks, in particular, for  the advice and support that they have given to me in the Chair and the advice that they have given to members of the Committee. I also thank the Hansard writers, the police and the Serjeant-at-Arms staff, who have ensured that the Committee proceedings have been effective and efficient. I congratulate all members of the Committee.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at sixteen minutes past Three o’clock.